Franklin v. I.N.S.

• Decision Date: 12 February 1996
• Docket Number: No. 94-3609,94-3609
• Citation: 72 F.3d 571
• Parties: Myrisia FRANKLIN, Petitioner, v. IMMIGRATION AND NATURALIZATION SERVICE, Respondent.
• Court: U.S. Court of Appeals — Eighth Circuit

Page 571

72 F.3d 571

Myrisia FRANKLIN, Petitioner, v. IMMIGRATION AND NATURALIZATION SERVICE, Respondent.

No. 94-3609.

United States Court of Appeals,

Eighth Circuit.

Submitted April 12, 1995.

Decided Dec. 11, 1995.

Rehearing and Suggestion

for Rehearing En Banc

Denied Feb. 12, 1996. ^*

Kathleen Hagen, Kansas City, Missouri, argued (Henri J. Watson, on the brief), for appellant.

David M. McConnell of the Office of Immigration Litigation, Department of Justice, argued (David V. Bernal, Department of Justice, on the brief), for appellee.

Before FAGG and BOWMAN, Circuit Judges, and BENNETT, ^** District Judge.

FAGG, Circuit Judge.

Myrisia Franklin, a Philippine citizen, was convicted of recklessly causing the death of her child, a crime classified as involuntary manslaughter under Mo.Rev.Stat. Sec. 565.024.1(1) (Supp.1994). Under Missouri law, persons act recklessly when they "consciously disregard[ ] a substantial and unjustifiable risk that circumstances exist or that a result will follow, and [the] disregard constitutes a gross deviation from the standard of care [that] a reasonable person would exercise in the situation." Mo.Rev.Stat. Sec. 562.016.4 (Supp.1994). Following Franklin's conviction, the Immigration and Naturalization Service brought deportation proceedings against Franklin under 8 U.S.C. Sec. 1251(a)(2)(A)(i) (1994), which permits the deportation of an alien who is convicted of a "crime involving moral turpitude." After a hearing, an immigration judge (IJ) decided Franklin's crime involves moral turpitude and ordered Franklin deported. The Board of Immigration Appeals (BIA) affirmed the IJ's decision. Contending she was not convicted of a crime involving moral turpitude, Franklin petitions for review.

Whether a statute defines a crime that involves moral turpitude for deportation under Sec. 1251(a)(2)(A)(i) is a question of federal law. Cabral v. INS, 15 F.3d 193, 196 n. 5 (1st Cir.1994). Like the BIA, we look to state law to determine the elements of the crime. Id. Otherwise, the consequences a state chooses to place on the conviction in its own courts under its own laws cannot control the consequences given to the conviction in a federal deportation proceeding. Yazdchi v. INS, 878 F.2d 166, 167 (5th Cir.) (per curiam), cert. denied, 493 U.S. 978, 110 S.Ct. 505, 107 L.Ed.2d 507 (1989). Contrary to Franklin's view, we do not examine the factual circumstances surrounding her crime. Castle v. INS, 541 F.2d 1064, 1066 (4th Cir.1976) (per curiam). Thus, on de novo review we must decide whether the BIA has reasonably interpreted its statutory mandate to deport aliens convicted of crimes involving moral turpitude. See Chevron U.S.A. Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837, 842-44, 104 S.Ct. 2778, 2781-83, 81 L.Ed.2d 694 (1984); Arkansas AFL-CIO v. FCC, 11 F.3d 1430, 1440-41 (8th Cir.1993) (en banc). If the BIA's interpretation is reasonable, "[we] cannot replace the agency's judgment with [our] own." Arkansas AFL-CIO, 11 F.3d at 1441.

The Immigration and Nationality Act, 8 U.S.C. Secs. 1101-1524 (1994), does not define the phrase "crime involving moral turpitude" and the Act's legislative history does not shed any light on Congress's intent. Cabral, 15 F.3d at 195. So "Congress left the [phrase] to future administrative and judicial interpretation." Id. In filling this gap, the BIA decided years ago that when criminally reckless conduct requires a conscious disregard of a substantial and unjustifiable risk to the life or safety of others, although no harm was intended, the crime involves moral turpitude for immigration purposes. In re Medina, 15 I. & N.Dec. 611, 613-14 (BIA1976), aff'd sub nom. Medina-Luna v. INS, No. 76-1498, slip op. at 2 (7th Cir. Jan. 13, 1977) (unpublished opinion); In re Wojtkow, 18 I. & N.Dec. 111, 112-13 (BIA1981). Having consistently adhered to its view about crimes of reckless endangerment for nearly twenty years, the BIA's interpretation is entitled to deference. See Arkansas AFL-CIO, 11 F.3d at 1441; Okoroha v. INS, 715 F.2d 380, 382 (8th Cir.1983). Because the Missouri definition of recklessness is nearly identical to the definitions in Medina and Wojtkow, the BIA applied the same interpretation in Franklin's case.

Although Franklin argued for a bright-line rule that involuntary manslaughter convictions do not involve moral turpitude, the BIA rejected her approach as unworkable in light of "the myriad [of] state classifications" for the crime. In re Franklin, No. A-40191863, 1994 WL 520990 (BIA Sept. 13, 1994). The BIA decided that it "must analyze the specific statute under which the alien [is] convicted on a case-by-case basis ... to determine whether the conviction is for a crime involving moral turpitude." Id. After considering the Missouri statute under which Franklin was convicted as well as the relevant definition of recklessness, the BIA concluded that because Franklin's crime "requires that she acted with a 'conscious disregard of a substantial and unjustifiable risk,' ... she has been convicted of a crime involving moral turpitude." Id. (quoting Mo.Rev.Stat. Sec. 562.016.4 (Supp.1994)).

Mindful that moral turpitude is a nebulous concept and there is ample room for differing definitions of the term, 3 Charles Gordon & Stanley Mailman, Immigration Law and Procedure Sec. 71.05[d], at 71-146 to 71-149 (1994), we cannot say the BIA's interpretation is unreasonable. Indeed, two other federal circuits have accepted the BIA's finding of moral turpitude in criminally reckless conduct that is defined as the conscious disregard of a substantial and unjustifiable risk. Gutierrez-Chavez v. INS, No. 92-70104, 1993 WL 394916, at * 2-5 (9th Cir. Oct. 6, 1993) (unpublished opinion); Medina-Luna v. INS, No. 76-1498, slip op. at 2 (7th Cir. Jan. 13, 1977) (unpublished opinion). We believe deference to the BIA's view is particularly appropriate because applying the moral turpitude term in the context of the immigration laws entails "policy determinations [about deportation] that fall within the ambit of [the BIA's] expertise." Akindemowo v. INS, 61 F.3d 282, 285 (4th Cir.1995).

In the framework of our deferential review, we cannot say the BIA has gone beyond the bounds of reasonableness in finding that an alien who recklessly causes the death of her child by consciously disregarding a substantial and unjustifiable risk to life has committed a crime that involves moral turpitude. Under the BIA's longstanding definition of moral turpitude, Franklin's crime can be fairly characterized as " ' "an act of baseness, vileness, or depravity in the private and social duties which [persons] owe to [their] fellow [persons] or to society in general, [and is] contrary to the accepted and customary rule of right and duty between [persons]." ' " Marciano v. INS, 450 F.2d 1022, 1025 (8th Cir.1971) (quoted cases omitted), cert. denied, 405 U.S. 997, 92 S.Ct. 1260, 31 L.Ed.2d 466 (1972).

We deny Franklin's petition for review.

BENNETT, District Judge, dissenting.

The deportation of Myrisia Franklin to the Philippines would be a miscarriage of justice. Before explaining why, I offer two observations based on extensive examination of deportation cases. First, such cases all too often receive from the BIA consideration that is both cursory and superficial. Second, the BIA often receives from the courts more deferential review than it is due. There are admittedly deportation cases that may be decided by the BIA with relative ease and dispatched with brevity. This is not such a case. The BIA must resist the temptation to dismiss deportation cases as treading all-too-familiar ground. Hiding in the apparently familiar landscape may be an issue that should send triers of fact and law up roads less traveled. This is such a case and compels such a journey. Because I conclude that neither the majority here nor the BIA below has applied the proper standards to determining whether Myrisia Franklin has been convicted of a crime involving moral turpitude, and hence is deportable, I dissent.

I have three principal disagreements with the decisions in this case. First, I dissent from according the BIA deferential review of each of its determinations in this case. Second, I dissent from the view that criminal recklessness can be a sufficient mental state to make a crime one in which moral turpitude necessarily inheres. Third, even if criminal recklessness could be deemed sufficient as that state of mind is sometimes defined, I find that neither the majority nor the BIA properly considered Missouri's definition of the crime of which Myrisia Franklin was convicted in deciding that such a crime was one in which moral turpitude necessarily inheres. At bottom, I must conclude that involuntary manslaughter as defined under Missouri law simply is not a "crime involving moral turpitude," subjecting an alien to deportation under Sec. 241(a)(2)(A) of the Immigration and Nationality Act (INA), 8 U.S.C. Sec. 1251(a)(2)(A). Involuntary manslaughter has not been so viewed in more than two centuries of this country's common law; the BIA's decision below offers no reasoned basis for disregarding the exclusion of involuntary manslaughter from the realm of crimes involving moral turpitude in the common law and the BIA's own prior decisions; involuntary manslaughter does not, as typically defined, involve the characteristic elements of a "crime involving moral turpitude"; and involuntary manslaughter certainly does not involve those characteristic elements as the crime is defined under Missouri law.

I. THE GRAVITY OF DEPORTATION

However, before I turn to these specific disagreements with the majority, I must first stress the gravity of the issue before the court. As the Supreme Court has emphasized on more than one occasion,

"deportation is a drastic measure and at times the equivalent of banishment or exile, Delgadillo v. Carmichael, 332 U.S. 388 [68 S.Ct. 10, 92 L.Ed. 17 (1947) ]. It is the...